McMillian vs. Carochi, No. 05-1393 (10th Cir. 2006)

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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS TENTH CIRCUIT October 12, 2006 Elisabeth A. Shumaker Clerk of Court C HA RLES JEFFR EY M C MILLIAN, Petitioner-A ppellant, v. No. 05-1393 (D.C. No. 05-cv-985-ZLW ) (Colorado) TONY CAROCHI, W arden; A TTO RN EY G EN ER AL O F THE STA TE OF C OLO RA D O , Respondents-Appellees. ORDER AND JUDGMENT Before HA RTZ, SE YM OU R, and M cCO NNELL, Circuit Judges. Charles Jeffrey M cM illian, a Colorado state prisoner appearing pro se, filed this application for a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1)(A), seeking to challenge the district court s sua sponte dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. 1 He also seeks leave to proceed in form a pauperis (ifp) on appeal. W here the district court dismisses a petition on procedural grounds, the inmate m ust show in his application for a COA that it is reasonably debatable 1 Because he is proceeding pro se, we review M r. M cM illian s pleadings and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). whether (1) the petition states a valid claim of the denial of a constitutional right, and (2) the district court s procedural ruling is correct. Dulworth v. Evans, 442 F.3d 1265 (10th Cir. 2006), (citing Slack v. M cDaniel, 529 U.S. 473, 483-84 (2000)). Because we conclude that the basis for the district court s procedural ruling is not correct and a quick review of M r. M cM illian s claims on the merits satisfies the first prong, we grant his applications for a COA and ifp status, vacate the district court s judgment, and remand for further proceedings. M r. M cM illian pled guilty in Colorado state court to charges of conspiracy to comm it first-degree murder, retaliation against a witness, second-degree murder, and aggravated motor vehicle theft. Prior to sentencing, he filed a motion under Rule 32(d) of the Colorado Rules of Criminal Procedure to withdraw his guilty plea. That motion was denied and he was sentenced to sixtyfour years imprisonment. The Colorado Court of Appeals affirmed, and on M ay 22, 1997, the Colorado Supreme Court denied certiorari review. The period of time before which a conviction becomes final continues until after the United States Supreme Court has denied review, or, if no petition for certiorari is filed, after the time for filing a petition for certiorari with the Supreme Court has passed. Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999). M r. M cM illian s conviction thus became final on August 22, 1997. Before his conviction became final, M r. M cM illian filed a motion for postconviction relief pursuant to Rule 35 of the Colorado Rules of Criminal -2- Procedure on M ay 22, 1997. That motion was denied on February 18, 1998, and M r. M cM illian s appeal of that denial was dismissed by the Colorado Court of Appeals on April 15, 1999. The Colorado Supreme Court subsequently denied his petition for a writ of certiorari on September 27, 1999. M r. M cM illian then filed a second Rule 35 motion for postconviction relief on April 17, 2000. It was denied and M r. M cM illian s appeal of that denial was dismissed by the C olorado Court of A ppeals. The Colorado Supreme Court subsequently denied his petition for a w rit of certiorari on April 25, 2005. M r. M cM illian filed the present § 2254 habeas petition on M ay 31, 2005. The district court dismissed his petition as untimely. A one-year period of limitation applies to an application for a federal writ of habeas corpus and begins to run from the latest of the date on which the judgment [of conviction] became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). A s we have shown above, M r. M cM illian s conviction became final on August 22, 1997. The district court s determination that his conviction became final prior to April 24, 1996 is therefore incorrect. Absent any tolling of the limitation period, M r. M cM illian would have had until August 22, 1998 to file a habeas corpus petition in federal court, and his petition of M ay 31, 2005 w ould have been untimely. M r. M cM illian filed two state motions for postconviction relief. The first was pending from M ay 30, 1997 -3- until September 27, 1999, and the second was pending from April 17, 2000 until April 25, 2005. Section 2244(d)(2) provides that [t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this section. Because M r. M cM illian s first motion for post-conviction relief was filed prior to his judgment becoming final, the one-year limitation period did not start to run until September 27, 1999. Thus, absent his second motion for postconviction relief, M r. M cM illian had until September 27, 2000 to file his habeas petition. Instead, on April 17, 2000, six months and nineteen days after the Colorado Supreme Court denied his request for a writ of certiorari as to his first motion, M r. M cM illian filed a timely second motion for postconviction relief. 2 Successive state motions for postconviction relief toll 28 U.S.C. 2244(d)(2) s 2 The United States Supreme Court has held that time limits for filing state motions for postconviction relief are to be considered filing conditions when determining whether a state motion was properly filed so as to toll 28 U.S.C. § 2244(d)(2) s one-year limitation period. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). Accordingly, a state postconviction motion rejected by the state court as untimely is not properly filed and does not toll the limitation period. Id. at 410. In the present case, the trial court dismissed M r. M cM illian s second motion for postconviction relief as successive and untimely. Rec. at 63, 6-12 The Colorado Court of Appeals affirmed, but not on the grounds that M r. M cM illian s motion was untimely. Rather, the court of appeals affirmed solely on the grounds that the motion was successive. Our review of the record suggests the motion was timely filed within Colorado s three-year statute of limitation for collateral attack on a trial court s judgment. C OLO . R EV . S TAT . § 16-5-402(1) (2006). Thus, the Supreme Court s holding in Pace does not apply to this case. -4- one-year limitation period as long as they were otherwise properly filed. See Habteselassie v. Novak, 209 F.3d 1208, 1210-12 (10th Cir. 2000). See also Artuz v. Bennett, 531 U.S. 4, 8 (2000); Drew v. Dep t of Corr., 297 F.3d 1278, 1284 (11th Cir. 2002); Smith v. Walls, 276 F.3d 340, 342 (7th Cir. 2002); Palmer v. Carlton, 276 F.3d 777, 779 (6th Cir. 2002); Snow v. Ault, 238 F.3d 1033, 1035 (8th Cir. 2001); Villegas v. Johnson, 184 F.3d 467, 469-70 (5th Cir. 1999); Lovasz v. Vaughn, 134 F.3d 146, 148-49 (3d Cir. 1998). Thus, M r. M cM illian s motion tolled the one-year period of limitation until April 25, 2005, the date on which the Colorado Supreme Court denied his request for a writ of certiorari, at which point the limitation period began to run once again. M r. M cM illian filed the present habeas petition on M ay 31, 2005, one month and six days from April 25, 2005, the date on which his second motion for postconviction relief was no longer pending. Adding together that one month and six days to the six months and nineteen days between motions for postconviction relief, it appears that when he filed the present habeas petition, M r. M cM illan had as much as four months and five days left on the one-year limitations period. The district court erred in ruling that his § 2254 petition was untimely. Accordingly, we GR ANT M r. M cM illian s application for a COA on the question of the timeliness of his § 2254 petition as well as his request to proceed -5- ifp. W e VAC ATE the judgment of the district court dismissing M r. M cM illian s petition and R EM A N D for further proceedings consistent with this opinion. 3 ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge 3 In light of our remand of Mr. McMillian s case, the district court should consider in the first instance Mr.McMillian s request to supplement his § 2254 petition. Mr.McMillian s motion on appeal, filed on May 9, 2006, is therefore DENIED. -6-

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